State v. Allen

296 So.3d 1096

STATE of Louisiana

v.Dewayne A. ALLEN

NO. 19-KA-377

Court of Appeal of Louisiana, Fifth Circuit.

April 30, 2020

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Zachary P. Popovich, Meredith Hearn

COUNSEL FOR DEFENDANT/APPELLANT, DEWAYNE A. ALLEN, Dewayne A. Allen, Cynthia K. Meyer

Panel composed of Judges Robert A. Chaisson, Hans J. Liljeberg, and John J. Molaison, Jr.

LILJEBERG, J.

Defendant appeals his convictions and sentences for five felony offenses. For the following reasons, we affirm defendant's convictions and his sentences on counts two through five. We amend the sentence on count one and affirm as amended. We also remand for correction of an error patent. Finally, we grant appellate counsel's motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On August 9, 2017, the District Attorney for Jefferson Parish filed a bill of information charging defendant, Dewayne A. Allen, with possession with intent to distribute heroin, in violation of La. R.S. 40:966(A) (count one); possession with intent to distribute cocaine, in violation of La. R.S. 40:967(A) (count two); possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (count three); possession of an unidentifiable firearm, in violation of La. R.S. 40:1792 (count four); and possession of a firearm by a person previously convicted of domestic abuse battery, in violation of La. R.S. 14:95.10 (count five). Defendant pleaded not guilty to the charged offenses.

On February 5, 2019, defendant withdrew his former pleas of not guilty, and after being advised of his Boykin¹ rights, pleaded guilty as charged.² In accordance with the plea agreement, defendant was sentenced on count one to 18 years imprisonment at hard labor, with the first ten years of the sentence to be served without benefit of probation, parole, or suspension of sentence; on count two to 18 years imprisonment at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence; on count three to 18 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence; on count four to five years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence; and on count five to five years imprisonment at hard labor. The trial court ordered defendant's sentences to run concurrently with each other.

On the same date, the State filed a multiple offender bill of information on count three—possession of a firearm by a convicted felon—alleging defendant to be a second-felony offender. Defendant stipulated to the multiple bill after being advised of his rights. The trial court then vacated defendant's original sentence on count three, and pursuant to the multiple offender stipulation, resentenced defendant on count three as a second-felony offender under La. R.S. 15:529.1, to 18 years imprisonment at hard labor without benefit of parole or suspension of sentence. The trial court ordered all of defendant's sentences, including those imposed in case numbers 18-1307 and 18-1571, to run concurrently and recommended defendant for participation in any available self-help programs. Defendant appeals.

FACTS

Because defendant's convictions were the result of guilty pleas, the facts underlying the crimes of conviction are not fully developed in the record. Thus, the facts were gleaned from the bill of information which alleged that on July 12, 2017, defendant violated La. R.S. 40:966(A) in that he did knowingly or intentionally possess with the intent to distribute heroin (count one), defendant violated La. R.S. 40:967(A) in that he did knowingly or intentionally possess with the intent to distribute cocaine (count two), defendant violated La. R.S. 14:95.1 in that he did have in his possession a firearm, to wit: a Sig Saur 9 mm, serial number 52A062448, and Taurus .45 caliber pistol, having been previously convicted of the crime of possession of cocaine, in violation of La. R.S. 40:967(C), under case number 471-934 on January 9, 2009, in Orleans Parish Criminal District Court (count three), defendant violated La. R.S. 40:1792 in that he did knowingly and intentionally possess, transfer, or transport a firearm, to wit: a Taurus .45 caliber pistol, with the serial numbers or identifying marks obliterated, altered, removed, or concealed (count four), and defendant violated La. R.S. 14:95.10 in that he did have in his possession a firearm, to wit: a Sig Saur 9 mm, serial number 52A062448, having been previously convicted of the crime of domestic abuse battery (2 counts) in violation of La. R.S. 14:35.3, under case number 531-678 on June 16, 2017, in Orleans Parish Criminal District Court (count five).

LAW AND DISCUSSION

Defendant's appointed counsel has filed an appellate brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). She has also filed a motion to withdraw as counsel of record. Defendant has filed a pro se brief raising three assignments of error, namely, that the trial court erred in denying his motion to suppress, ineffective assistance of counsel, and sentencing errors.

Anders Brief

Under the procedure adopted by this Court in State v. Bradford (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11,³ appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders , supra , and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it.⁴ The request must be accompanied by "a brief referring to anything in the record that might arguably support the appeal" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the present case, defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel submits that the only pre-trial ruling which could arguably support an appeal is the denial of defendant's motion to suppress; however, she notes that defendant did not preserve his right to seek appellate review of the denial of any motions. Appellate counsel further maintains defendant entered unqualified guilty pleas, thereby waiving any non-jurisdictional defects. She further asserts the trial court advised defendant of the rights necessary to ensure a knowing and intelligent waiver of rights, as well as the sentencing ranges for the offenses and the sentences that would be imposed. Appellate counsel concludes that defendant was sentenced pursuant to the plea agreement, precluding him from challenging his sentences on appeal.

Appellate counsel has also filed a motion to withdraw as attorney of record which states she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal.

The State agrees with appellate counsel that there are no non-frivolous issues to be raised on appeal, and that appellate counsel's request to withdraw should be granted.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offenses. It also sufficiently identified defendant and the crimes charged. See generally La. C.Cr.P. arts. 464 - 466. The record also shows there are no appealable issues surrounding defendant's presence. The minute entries show defendant appeared at each stage of the proceedings against him, including his arraignment, his guilty plea proceeding, his sentencing, and his multiple bill proceeding, including his stipulation and his enhanced sentencing.

Further, defendant pleaded guilty as charged to the offenses contained in the bill of...